Communication with Apple Inc. regarding Digital Driver's License
It is a clone of this request.
| Submitted | May 25, 2023 |
| Est. Completion | None |
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Communications
From: Jordan Lassiter
To Whom It May Concern:
Pursuant to the Delaware Freedom of Information Act, I hereby request the following records:
Public Information Officer
Delaware Department of Transportation
800 Bay Road, P.O. Box 778
Dover, DE 19903
Subject: Freedom of Information Act Request - Communication with Apple Inc. regarding Digital Driver's License
Dear Public Information Officer,
I am writing to submit a formal request under the Delaware Freedom of Information Act (FOIA), requesting access to records held by the Delaware Department of Transportation (DelDOT). Specifically, I am seeking information related to any communication between DelDOT and Apple Inc. regarding the development, implementation, or management of the Digital Driver's License system in Delaware.
In accordance with FOIA, I request access to the following information within the specified timeframe:
Any written correspondence, including letters, emails, memoranda, and faxes, exchanged between the Delaware Department of Transportation and Apple Inc. regarding the Digital Driver's License system between January 1, 2019, and the date of processing this FOIA request.
Any meeting minutes, agendas, or summaries of meetings, including phone or video conferences, held between representatives of the Delaware Department of Transportation and Apple Inc. regarding the Digital Driver's License system during the same period specified above.
Any contracts, agreements, or memoranda of understanding entered into between the Delaware Department of Transportation and Apple Inc. regarding the development, implementation, or management of the Digital Driver's License system.
Any reports, presentations, or studies prepared by Apple Inc. or shared with the Delaware Department of Transportation pertaining to the Digital Driver's License system.
Any policies, guidelines, or directives issued by the Delaware Department of Transportation in relation to the use of Apple Inc.'s technology or services for the Digital Driver's License system.
To support this request, I would like to refer to the following provisions of the Delaware Freedom of Information Act:
Title 29, Chapter 100, Subchapter III, § 10003: Declaration of Policy - This provision establishes the public's right to access records held by public bodies in Delaware.
Title 29, Chapter 100, Subchapter III, § 10002: Definitions - This section defines public records and public bodies and outlines the scope of the Delaware Freedom of Information Act.
I would like to explicitly state that I request that you do not withhold or redact any responsive documents without valid legal grounds. If any redactions are made, I kindly request that you provide an index of the redacted material with specific citations to the applicable exemptions under FOIA.
Furthermore, I request that you take appropriate measures to ensure the preservation of all responsive records. Please refrain from deleting, destroying, or altering any documents that fall within the scope of this request.
Please note that this request covers both electronic and physical records, regardless of format, including but not limited to paper documents, emails, attachments, text messages, and audio or video recordings.
If access to the requested records is denied or only partially granted, please cite the specific legal exemptions or reasons for withholding the information as required by the Delaware Freedom of Information Act.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 15 business days, as the statute requires.
Sincerely,
Jonathan Rudenberg, a citizen of Delaware, in coordination with Jordan Lassiter.
From: Department of Transportation
Dear Mr. Rudenberg,
This responds to your request dated May 25, 2023, to the Delaware Department of Transportation ("DelDOT") under the Delaware Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA").
Your request seeks the following information:
* Any written correspondence, including letters, emails, memoranda, and faxes, exchanged between the Delaware Department of Transportation and Apple Inc. regarding the Digital Driver's License system between January 1, 2019, and the date of processing this FOIA request.
* Any meeting minutes, agendas, or summaries of meetings, including phone or video conferences, held between representatives of the Delaware Department of Transportation and Apple Inc. regarding the Digital Driver's License system during the same period specified above.
* Any contracts, agreements, or memoranda of understanding entered into between the Delaware Department of Transportation and Apple Inc. regarding the development, implementation, or management of the Digital Driver's License system.
* Any reports, presentations, or studies prepared by Apple Inc. or shared with the Delaware Department of Transportation pertaining to the Digital Driver's License system.
* Any policies, guidelines, or directives issued by the Delaware Department of Transportation in relation to the use of Apple Inc.'s technology or services for the Digital Driver's License system.
As of the date of your request, DelDOT has not entered into or finalized a contract or agreement with Apple INC., nor has DelDOT ever obtained services from Apple for a Digital Driver's License System as DelDOT understands that phrase. As such, any information that pertains to DelDOT and Apple is exempt from disclosure at this time as it falls under draft appraisals, negotiations, and contracts which are exempt as there is no obligation to provide every draft and every change and those types of materials can be withheld as " a working draft which the author is still revising prior to presentation to a public body." See Op. Att'y Gen. 16-IB11 (June 6, 2016). 29 Del. C. § 10002(l)(2), ""[t]rade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature." Further, providing copies of contracts or agreements that are under negotiation, including DelDOT's consultant's recommendations regarding proposed contract provisions has the ability to harm DelDOT's "competitive position" and as such, those records are protected from disclosure. ." See Op. Att'y Gen. 16-IB11 (June 6, 2016). 29 Del. C. § 10002(l)(2). Providing such records has the potential to harm DelDOT's ability to negotiate agreements in the future should DelDOT choose to use Apple's services. If, in the future, a contract or agreement is finalized with Apple, those documents will then become available and you may resubmit your request at that time. Please note, once the information does become available, any documents containing attorney-client privilege are exempt from disclosure, pursuant to 29 Del. C. 10002(o)(6):"[a]ny records specifically exempted from public disclosure by statute or common law." See Op. Att'y Gen. 16-IB11 (June 6, 2016) (reaffirming attorney-client privilege as a valid FOIA exemption). Therefore, those documents will not be included. Also, any documents that may contain trade secrets and/or IT security information will be redacted or not included pursuant to 29 Del. C. §10002(o)(2) and 29 Del. C. §10002(o)(17)(a)(7), respectively.
Accordingly, for the above-mentioned reasons, DelDOT is denying your request and this FOIA is now closed.
Sincerely,
Kristin Schaap
Paralegal III
Legal Department
Department of Transportation
800 Bay Road
P.O. Box 778
Dover, DE 19903
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From: Jordan Lassiter
Dear Ms. Schaap,
I am writing in response to your letter dated June 10, 2023, regarding my Freedom of Information Act (FOIA) request pertaining to the Delaware Department of Transportation's (DelDOT) communications and other documents concerning a potential Digital Driver's License system developed in conjunction with Apple Inc.
I respect your concerns about safeguarding trade secrets, draft appraisals, and negotiations. However, I must express my respectful disagreement with the broad application of these exemptions in the present case.
Firstly, it is noteworthy to mention that my original request did not explicitly seek draft appraisals or ongoing negotiations. Instead, it was focused on any finalized agreements, contracts, or MOUs that may exist between DelDOT and Apple Inc. It is pertinent to reference the ruling in the Office of the Governor v. Davis, 2010 Del. Super. LEXIS 264, where it was held that FOIA exemptions should not be construed overly broadly. This principle implies that the mere possibility of an agreement should not prohibit the release of existing finalized agreements.
Next, regarding the potential competitive harm that DelDOT might face, I would like to draw attention to the precedent set by the Delaware Supreme Court in News-Journal Co. v. Billingsley, 1980 Del. Ch. LEXIS 400. The court stated that competitive harm must be substantial and likely, not just potential or theoretical, for the competitive harm exemption to be applicable. In the current circumstances, with no finalized contract with Apple Inc., it is not evident how the disclosure of the requested documents could result in substantial harm to DelDOT.
Moreover, the Delaware Superior Court in ACLU of Del. v. Danberg, 2007 WL 3332307, reemphasized that "the public has a right to know about actions taken by public officials and agencies", even when these actions involve contractual negotiations with private parties.
Additionally, if there exist legitimate concerns regarding trade secrets, financial, or privileged information, these issues can be addressed through judicious redaction rather than a complete denial of the request. In this regard, the Delaware Supreme Court in Office of the Governor v. Davis affirmed that public agencies should "segregate and release nonexempt information."
Given these legal precedents and the public interest in promoting transparency around the potential utilization of new technology in public services, I kindly request that you reevaluate your decision to deny my FOIA request.
I eagerly await your prompt response. If you require any further clarification regarding my request, please feel free to contact me.
Sincerely,
Jordan Lassiter
From: Department of Transportation
Hi Mr. Rudenberg,
DelDOT received your below response. Please allow DelDOT 7-10 business days to respond further to your below email as several employees, including myself starting tomorrow, are currently out or will be out of the office until next week, with Monday being a State Holiday.
Thank you in advance for your patience.
Sincerely,
Kristin Schaap
Paralegal III
Legal Department
Department of Transportation
800 Bay Road
P.O. Box 778
Dover, DE 19903
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This message may contain CONFIDENTIAL and/or LEGALLY PRIVILEGED information intended only for the addressee (s). If you received this email in error or if the information contained in this email was sent in error, please notify the sender immediately by replying to this email, then delete this communication and any attachment (s) immediately from your system. Any unauthorized reading, distributing, or copying of this message is prohibited.
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From: Department of Transportation
Dear Mr. Rudenberg,
This is in response to your email on June 14, 2023, to DelDOT regarding your FOIA request denial.
Your email begins by stating that your request was “focused on any finalized agreements, contracts or MOUs that may exist.” DelDOT reiterates that there are no finalized agreements, contracts, or MOUs with Apple at this time so there is not a document to provide. DelDOT has not entered into any agreement, contract of MOU with Apple relating to the Digital Driver’s License system. DelDOT is not in possession of responsive records as there has been no agreement entered into between the parties.
As to the issue of disclosing documents that are part of ongoing negotiations, you cite to a Court of Chancery Case, News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980). That case is not a Supreme Court case as you suggest, nor does it address issues of the harm created by disclosing ongoing negotiations. The Billingsley case involved efforts by the News Journal to obtain investigatory files in the possession of the Delaware Association of Professional engineers and is not dispositive on the issue of whether drafts and documents of ongoing negotiations must be disclosed under FOIA.. Draft documents, and emails or other communications which discuss or include/attach ongoing discussions are exempt from disclosure when the documents are working drafts not ready to be presented to the public. See Attorney General Opinion No. 05-IB13. Once any agreement, contract, or MOU, is finalized, the requested information will then become public, including documentation of the communications between Apple and DelDOT which sought to negotiate the terms of any agreement which is ultimately entered. Communications between the DMV and Apple discussing any potential “agreements, contracts, or MOUs” are negotiations of a document that is not yet finalized, and are exempt from FOIA. At this time, the communications between the DMV and Apple are discussing proposed language to draft agreements, and as such, DelDOT is denying your request. Once the documents are finalized, that information will be available to the public, barring any exemptions such as attorney-client privilege, trade secrets, and IT security issues.
Sincerely,
Kristin Schaap
Paralegal III
Legal Department
Department of Transportation
800 Bay Road
P.O. Box 778
Dover, DE 19903
[cid:image001.png@01D9A7FB.1CAAB640]
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This message may contain CONFIDENTIAL and/or LEGALLY PRIVILEGED information intended only for the addressee (s). If you received this email in error or if the information contained in this email was sent in error, please notify the sender immediately by replying to this email, then delete this communication and any attachment (s) immediately from your system. Any unauthorized reading, distributing, or copying of this message is prohibited.
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